Ong v Minister for Immigration & Anor
[2008] FMCA 1393
•1 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ONG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1393 |
| MIGRATION – VISA – Skilled – Independent Overseas Student (Residence) (Class DD) visa – whether Tribunal took into account an irrelevant consideration – whether Migration Regulations 1994 (Cth) Schedule 2 subclause 880.230(2) is invalid. CONSTITUTIONAL LAW – Acquisition of property – application for visa – payment of application fee – criteria for grant to be satisfied at date of decision – expectation at time of application that criterion would be satisfied – change in criteria before date of decision – refusal of application – whether loss of application fee acquisition of property without just terms. DELEGATED LEGISLATION – Visas – power to prescribe criteria for visa or class of visa – application for visa – regulation for visa – regulation made after application and before decision changing criteria applicable at time of decision – validity. |
| Constitution s.51(xxxi) Judiciary Act 1903 (Cth) s.78B Migration Act 1958 (Cth) ss.65, 349, 351, 474, 476 Migration Regulations 1994 (Cth) cl.880.230 Migration Amendment Regulations 2005 (No 3) reg 4(1) |
| Sun & Anor v Minister for Immigration & Anor [2008] FMCA 180 Quarm v Minister for Immigration & Anor [2008] FMCA 287 Quarm v Minister for Immigration & Citizenship [2008] FCA 1156 followed |
| Applicant: | HOOI TING ONG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2822 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 October 2008 |
| Date of Last Submission: | 1 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 1 October 2008 |
REPRESENTATION
| Applicant’s Solicitor: | Mr Liu |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| First Respondent’s Solicitor | Mr Markus |
| Solicitors for the Respondents | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs in the sum of $2,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2822 of 2007
| HOOI TING ONG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant asks the Court to review a decision of the Migration Review Tribunal signed on 7th August 2007 and handed down on 17th August affirming a decision not to grant her a Skilled – Independent Overseas Student (Residence) (Class DD) visa.
She claims that the Tribunal took into account an irrelevant consideration in that it took into account subclause 880.230(2) of Schedule 2 of the Migration Regulations 1994, which the applicant claims is invalid.
Background
The Applicant, who is a citizen of Malaysia, arrived in Australia in 2002. She studied at the University of Melbourne for the degree of Bachelor of Food Science after completing a year at Monash University. In 2005 the Applicant completed a Retail Baking; Cake and Pastry course and attained a Certificate III in Food Processing (Retail Baking) Cake and Pastry. The certificate was issued by the City College of Professional Development.
The Applicant applied for a Skilled – Independent Overseas Student (Residence) (Class DD) visa on 8th March 2006. A delegate of the Minister refused the application on 14th February 2007. The delegate found that the City College of Professional Development was not registered on the Commonwealth Register of Institutions and Courses for Overseas Students. Registration is a requirement under the Education Services to Overseas Students Act 2000. Accordingly, the delegate found that the Applicant did not meet the requirements of Regulation 880.230 of Schedule 2, in that she did not have a skills assessment made on the basis of qualifications obtained in Australia as a result of full time study of a registered course.[1]
[1] Court Book 126
The Applicant applied to the Migration Review Tribunal on 2nd March 2007, seeking a review of the delegate’s decision. The Tribunal wrote to the Applicant on 25th May 2007, inviting her to attend a hearing on 28th June. On 27th June 2007, the Applicant’s solicitor advised that the Tribunal that the Applicant declined the invitation to attend the hearing and asked the Tribunal to consider a submission and make a decision on the papers.
The Applicant’s solicitor sent a submission dated 27th June 2007 to the Tribunal by fax, conceding the failure to meet the requirements of Regulation 880.230 of Schedule 2. The submission went on to allege that the Applicant’s application for a visa was “taken out of the normal processing stream and held back from ‘normal’ processing in circumstances constituting a clear breach of the statutory expectation raised by Section 65”.[2] The submission went on to ask the Tribunal to try to determine whether the Department of Immigration and Citizenship held back the application in circumstances inconsistent with the duty to act fairly. The submission also asked the Tribunal to consider whether there might be grounds for it to recommend that the matter be subject to Ministerial intervention under s.351 of the Migration Act.
[2] Court Book 154
The Tribunal handed down its decision on 17th August 2007, affirming the delegate’s decision.
The Tribunal found:
Prior to 1 July 2005[3], there was (sic) no time of application criteria for a Subclass 880 visa. The time of application criteria only apply to visa applications lodged on or after 1 July 2005. The applicant lodged her application on 6 March 2006.[4]
[3] This appears to be a clerical error, as subclause (2) came into operation on 1 July 2006.
[4] Court Book 178
The Tribunal noted the concession that the Applicant failed to meet the requirements of cl.880.230. The Tribunal stated:
I find that the qualification was not obtained as a result of full time study of a registered course. The course undertaken by the applicant at the City College of Professional Development was not a registered course as required by subcl. 880.230 (2).
I find the applicant does not meet the requirements of cl. 880.230.
I have taken into account the request by the adviser made by letter of 27 June 2007. I have no discretion in relation to conduct of the Department during the processing of this application.
As the applicant does not meet the requirements of cl. 880.230 I must affirm the decision under review.[5]
[5] Court Book 179
The Tribunal then went on to refer to the request by the Applicant’s adviser in relation to Ministerial intervention and stated:
I concur that the changes have created an unintended and unfortunate consequence for the applicant.[6]
[6] Ibid
Application for Judicial Review
The Applicant filed an application and affidavit in support on 13th September 2007, seeking judicial review of the Tribunal’s decision. On 8th October 2007 the Court made directions for hearing and listed the application for final hearing on 19th March 2008. However, on 30th October 2007, the Applicant filed a Notice of a Constitutional Matter under the provisions of s.78B of the Judiciary Act 1903. The Notice claimed that subclause 880.230(2) of Schedule 2 was invalid as repugnant to s.51 (xxxi) of the Constitution, as the retroactive application of that subclause resulted in the acquisition of property of the Applicant by the Commonwealth of Australia, constructively or actually, without providing just terms for that acquisition, being the visa application charge of $1935.00 paid by the Applicant and the right set out under s 65 of the Migration Act.
As there were other applications in which the same constitutional issue was being raised (Sun & Anor v Minister for Immigration & Anor[7] and Quarm v Minister for Immigration & Anor[8]), it was agreed between the parties that the hearing date of 19th March 2008 would be vacated pending judgment in the other two matters. Accordingly, the application was listed for hearing on 1st October 2008.
[7] [2008] FMCA 180
[8] [2008] FMCA 287
In her application, the Applicant claims that the Tribunal took into account an irrelevant consideration. The particulars of that claim are that the Tribunal took into account subclause 880.230(2) of the Schedule 2 of the Migration Regulations 1994, when that subclause was invalid because:
1. It was made for an improper purpose, being to deprive subclass 880 visa applicants, who had obtained the prescribed skills assessment for the purposes of the subclass 880 criteria the benefit of that assessment and to deprive the applicant of the visa application charge:
(A)by imposing a retrospective requirement that the qualification obtained in Australia, and upon which the skills assessment was based, had to be obtained as a result of a registered course, despite it being known that at the time the visa applicant lodged her application, there was no such limitation and that the retrospective operation of subclause 880.230(2) would result in the applicant no longer being able to satisfy subclause 880.230.
(B)by omitting from Schedule 1 any corresponding change for a registered course requirement as set out in (A) above, such that the visa application charge was kept by the Commonwealth as the application would remain a valid application, but one that had to be refused, thereby effectively ensnaring the applicant who had paid a significant visa application charge by applying for a visa for which she qualified at the time, only to refuse it because of the retrospective operation of the subclause and to keep that charge.
2. It is inconsistent with ss 4, 31(3) and 65 of the Migration Act 1958 because those sections do not empower the Minister to make a criterion or to change a criterion that has retrospective effect that results in depriving a visa applicant of the visa application charge paid and refusal of the visa when it would otherwise have been granted.
3. It is so unreasonable or disproportionate in its retrospective application as to be invalid, because it effectively ensnared the applicant, who had paid a significant visa application charge by applying for a visa for which she qualified at the time, and for which she had a legitimate expectation that those qualifying criteria would be applied; the retrospective operation of subclause 880.230 resulting in the visa application being refused and the keeping of the visa application charge by the Commonwealth.
4. It is uncertain in its terms of its retrospective operation, as subclause 880.230(2) purports to apply to any application not decided before 1 July 2006, despite transitional regulation 4 of Migration Amendment Regulations 2005 (No.3) confirming that clause 880.230 is only to be applied to applications not made on or after 1 July 2005.
5. It is repugnant to Section 51(xxxi) of the constitution, constructively or actually acquiring property, without providing just terms for such acquisition that property being the visa application charge and the right set out under s 65 of the Migration Act 1958.
The Applicant seeks the following orders:
i)A declaration that subclause 880.230 is invalid, or invalid in so far as it seeks to operate retrospectively.
ii)A declaration that the decision made by the Migration Review Tribunal is void and of no effect.
iii)A writ of certiorari directed to the Second Respondent removing into this Court to be quashed the decision made by it on 7 August 2007 and handed down on 17 August 2007 to affirm the decision of a delegate of the First Respondent to refuse to grant the Applicant a subclass 880 visa.
iv)A writ of mandamus directed to the Second Respondent to hear and determine the Applicant’s application for review according to law.
There is no record of any response being filed.
The decisions in Sun and Quarm were that the application in each case would be dismissed. The application in this matter was adjourned to 1st October 2008 to await the decision in the appeal Quarm v Minister for Immigration and Citizenship and Anor. On 22nd August 2008 Sundberg J gave judgment in that matter, dismissing the appeal.[9]
[9] [2008] FCA 1156
The Applicant has not filed any submissions in this matter. On the date of the hearing, the Applicant’s solicitor conceded that the appeal decision was binding on this Court and was adverse to the Applicant’s case.
Conclusions
The decision in Quarm concerned an application for a Skilled – Independent Overseas Student (Class DD, subclass 880) visa for which the appellant had applied on 26th September 2005. She had paid the required fee of $1935.00. She had supplied a positive skills assessment to meet the requirement in clause 880.221. However, by the time her application was assessed by the Minister’s delegate, clause 880.230 had been amended by the Migration Amendment Regulations 2005 (No 3). By regulation 4(1), the 2005 transitional provision, the amendment applied to a visa application made on or after 1st July 2005. Clause 880.230 was amended to read that the qualification which led to the positive skills assessment had to have been obtained as a result of full time study of a registered course. A registered course is one provided by an institution, body or person registered under s.9 of the Education Services for Overseas Students Act 2000.
The Migration Amendment Regulations 2006 (No 4) provided that the amendments applied in relation to a visa application:
a)made but not finally determined before 1 July 2006; or
b)made on or after 1 July 2006.
The course upon which the appellant relied for her positive skills assessment was not a “registered course” for the purposes of clause 880.230(2).
The application was refused by the Minister’s delegate on 14th February 2007 and an application for review by the Migration Review Tribunal was dismissed on the ground that clause 880.230(2) applied and was not satisfied.
The appeal in Quarm dealt with the same issues as the Applicant had claimed in this case. It was held that the appellant’s attack on the validity of clause 880.230(2) and the 2006 transition provision failed (at [31]).It was further held that there was no acquisition of property within s.51(xxxi):
She paid the fee voluntarily. There was no compulsory acquisition, expropriation or requisition.[10]
[10] Quarm at [32]
The Court held that:
In order for the voluntarily paid fee to become an expropriated asset, the challenged provisions must have defeated some right that was acquired by the appellant when she entered into the transaction constituted by the visa application accompanied by the fee. What she thereby obtained was the right to have her application considered and determined according to law. That right is enforceable by public law remedies such as mandamus. It is not a right to a particular outcome. The right to have an application determined according to law is always subject to the power of Parliament and its delegates to change the law. Accordingly there is no right to have an application considered against criteria that exist at the time the application is made.[11]
[11] Quarm at [35]
Further, the Court held:
The change that occurred as a result of the impugned provisions, although it affected her chances of success, was not a change which detracted from any rights the appellant obtained on the making of her valid application.[12]
[12] Quarm at [36]
It was held that the Federal Magistrate (Smith FM) correctly rejected the contention that there had been an acquisition of property.
Clearly, the decision in Quarm is directly on point. It is a decision on appeal from the Federal Magistrates Court[13] and is therefore binding.
[13] Even though, sadly, it refers to a body known as the “Magistrates Court”.
It follows that the application must be dismissed with costs. An amount of costs in the sum of $2,800.00 is sought by the First Respondent, which I consider to be appropriate in the circumstances.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 7 October 2008
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